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TMI Blog2021 (6) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... No.2 to the effect that it would produce the same at the time of trial. On verification of the same only, the learned Magistrate has taken the cognizance of the offence under Section - 138 of the Act, 1881 vide C.C. No. 5 of 2019. The learned Magistrate then issued summons to the petitioners herein and other accused. There is an endorsement to the said effect in the complaint itself. Respondent No.2 has filed an application under Section 65 (c) of the Act, 1872 which was signed by its GPA Holder, specifically contending the aforesaid facts. Just because respondent No.2 has not lodged any complaint with the police concerned about lost of original documents, the said application cannot be thrown away. There is no reason as to why the petition filed by respondent No.2 signed by its GPA holder and Authorized Signatory stating that the originals were misplaced cannot be believed. According to this Court, respondent No.2 has laid down a factual foundation by filing an application under Section 65 (c) of the Act, 1872 - the learned Magistrate has rightly allowed the application filed by respondent No.2 under Section 65 (c) of the Act, 1872. Petition dismissed. - CRIMINAL PETITION ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... originals only, the learned Magistrate has taken cognizance for the offence under Section - 138 of the Act, 1881 and issued summons to the petitioners - accused and other accused. 5. Respondent No.2 herein has filed an application vide Crl.M.P. No.206 of 2020 in C.C.NO.5 of 2019 under Section 65 (C) of the Indian Evidence Act, 1872 (for short Act, 1872 ) stating that the complainant has filed fifteen (15) original documents along with complaint, and after verification, the learned Magistrate returned the same with an undertaking to produce the same at the time of trial. The said documents were misplaced in the Company, and despite its best efforts, it could not trace the originals. Therefore, respondent No.2 herein sought permission to file Photostat copies of the said documents and mark the same. 6. A counter was also filed by the petitioners herein opposing the said petition. In the counter, it is contended by the petitioners that Photostat copies are inadmissible in evidence as held by the Hon ble Supreme Court in U. Sree v. U. Srinivas [(2013) 2 SCC 114] and, therefore, the same cannot be received as secondary evidence. Respondent No.2 has to adduce secondary eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual foundation and lodging of complaint about misplacement of original documents. Though a detailed counter was filed resisting the said application, the learned Magistrate by relying upon the principle laid down by the Apex Court and a Division Bench of High Court of Judicature at Hyderabad in Krishnapatnam Port Co.Ltd. allowed the said application. The impugned order is contrary to the procedure laid down under Section - 65 of the Act, 1872 and also the principle laid down by the Apex Court. With the said contentions, the learned counsel sought to quash the impugned order. SUBMISSIONS OF RESPONDENT No.2: 10. On the other hand, Mr. N. Srikanth Goud, learned counsel for respondent No.2 would submit that respondent No.2 has filed all the original documents which are fifteen (15) in number along with the complaint itself. After verification of the said originals with the Photostat copies thereof, the learned Magistrate has returned the same with an undertaking to produce the originals at the time of trial. On giving such an undertaking by respondent No.2, the learned Magistrate has returned the original documents to respondent No.2 on 19.06.2012, and in proof of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o note that the GPA Holder of respondent No.2 has also signed the said petition. 13. In Krishnapatnam Port Co.Ltd. a Division Bench of High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh had an occasion to deal with the scope and ambit of Section - 65 of the Act, 1872 and also the issue of filing an affidavit affirming that the documents were lost while office was being shifted and case files were being transferred from one team to another. In the said case, the original documents were misplaced while shifting the office and a sworn affidavit was filed to the said effect. Considering the said aspects, the Division Bench determined the following five (05) points: 1. Whether the xerox copies of the documents would amount to secondary evidence. 2. Whether the original documents of the documents, sought to be admitted, are proved as lost. 3. Whether the notice mandated by Section 66 of the Indian Evidence Act is necessary before admitting the documents. 4. Whether the failure of the respondent to seek permission of the court, for filing documents, at a alter stage of filing the plaint, would make the petition liable for dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which probably the petitioner may not have the copies. No explanation is found in the petition, with regard to the probability of the copies of the above documents being with the petitioner. In Ehtisham's case the Apex Court observed that the law is well settled that if a party wishes to lead secondary evidence the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence and at the same time the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the document falls under section 65(a) of the Act, notice under section 66 of the act becomes necessary. Hence, the notice under Section 66 of the Act is required to be given to the party in whose possession the original or the copies of the documents are, for production of such copies. The point is answered accordingly. 16. In view of the law laid down by the Division Bench in Krishnapatnam Port Co.Ltd. and also as discussed above, respondent No.2 has filed original documents along with the complaint and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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